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Court-Des Moines Water Works Cannot Win Damages in Nitrate Case

01/27/2017

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Des Moines Water Works cannot win damage payments from drainage districts in three northwest Iowa counties accused of letting fertilizers and other pollution run unchecked into the Raccoon River, the Iowa Supreme Court ruled Friday.

The ruling is a blow to the utility’s controversial lawsuit seeking more accountability from drainage districts overseen by Sac, Calhoun and Buena Vista counties that operate tile systems to drain water from farm fields. The water works hoped to reverse nearly a century of legal precedent that’s given the districts a special immunity from being sued for damages, arguing that the protection relieves districts of any pressure to limit farm runoff into streams and rivers.

But the supreme court upheld that longstanding precedent in a decision that will be celebrated by farmers and agriculture industry groups. The lawsuit fueled fears among farmers in the three counties that costs would be assessed to them if the water works ultimately won a damage award at trial.

Justice Thomas Waterman authored the majority opinion, writing that a lawsuit is not the proper method for the water works to seek repayment for the costs of filtering nitrates from drinking water. Rather, that policy should be decided by Iowa lawmakers, he wrote.

“Ultimately, this case is about who pays for nitrate removal from the drinking water that reaches our kitchen faucets,” he wrote. “The DMWW does not claim nitrate levels render the Raccoon River unsafe for swimming or fishing. All parties agree the DMWW removes unsafe levels of nitrates from the water it provides to its customers…It is for the legislature to decide whether to reallocate the costs of nitrate reduction.”

The water works board filed the lawsuit in 2015, claiming that nitrates flowing into the Raccoon River are forcing the utility to spend millions of dollars running a removal facility to get clean water for its 500,000 customers in central Iowa. Unlike factories and cities, drainage districts and the fields in their borders have not been required by the federal government to get permits regulating what pollutants they can discharge downstream.

In addition to seeking monetary damages, the utility’s lawsuit aims to get a judge’s order forcing the districts to be permitted under the federal Clean Water Act, a move that would increase regulation for each of the approximately 3,000 districts statewide. That portion of the lawsuit remains unaffected by the supreme court’s ruling and will still move forward toward a trial.

Though the lawsuit was filed in federal court in the Northern District of Iowa, the Iowa justices heard pretrial arguments through a rare procedural move known as a “certified question” in which state supreme courts tackle questions about state law before a federal judge issues a decision. U.S. District Judge Mark Bennett asked the justices to step in after the three counties asked him to dismiss part of the lawsuit, claiming they should be immune from paying damages because of the Iowa precedent.

Justice Edward Mansfield joined the majority opinion written by Waterman, while Chief Justice Mark Cady and Justice Brent Appel joined only in part. The chief justice wrote a dissent arguing that drainage district immunity may need to be revisited by the court in the future.

“It is abundantly clear that Iowa’s drainage district law did not originate and was not developed over time with the thought that a drainage district could be a polluter,” he wrote. “If it had, I am convinced our law would have developed in a way that would have recognized a clear remedy…The role and purpose of drainage districts in Iowa is important, but no more important than this state’s enduring role of good stewardship.”

The case law that gave drainage districts immunity developed at the outset of the 20th century when clearing water from fields was viewed by lawmakers and the court as protecting public welfare and health. The Iowa Drainage District Association argued before the court that any changes to Iowa law that would alter the protection should be made by lawmakers.

The three counties have argued in court filings that they add a relatively small amount of nitrates to the Raccoon River and make up less than 1 percent of its watershed north of Des Moines. Agriculture leaders have also questioned the practicality of regulating drainage districts, which cover about a quarter of the 36 million acres that make up Iowa.

“Imagine trying to test every tile line out there, and follow around every farmer,” Iowa Secretary of Agriculture Bill Northey told the Register in 2015.
Source: The Des Moines Register

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